Split zoned parcels can be a headache for property owners and practitioners.  In general, a split zoned parcel is a piece of land located in two or more zoning districts and divided by a zoning district boundary line.  Often these split zoned parcels are found at interfaces between commercial and residential uses or other areas of transition in the municipality.

Throughout New York, most zoning codes provide various ways to handle such conditions, often allowing applicants to extend one district or its permitted uses over a portion of the other district without needing to apply for a change  of zone.  Problems for applicants and practitioners arise when the proposed use on the property is prohibited on the other side of the  zoning boundary line.  Under those circumstances, applicants may face hostile boards or opponents claiming that because such use is prohibited in one of the districts, it requires a use variance.  As a use variance can often be an insurmountable hurdle, practitioners must carefully craft a record to support the proposed use for a split zoned parcel.

Recently, in  the City of Saratoga Springs, a neighboring restaurant owner sued to block a proposed pet kennel, claiming it required a use variance because kennels were prohibited in one of the two zones that split the property.  In other words, the restaurant owner was claiming that the prohibited tail was wagging the permitted dog.  Unfortunately, the restaurant owner was barking up the wrong tree, and in June of 2018, the Appellate Division affirmed the City of Saratoga Springs Zoning Board of Appeals (ZBA) determination that a use variance was not required for the proposed kennel project and granted the necessary area variances See, Wen Mei Lu v. City of Saratoga Springs—N.Y.S.33D —(3d Dept 2018).

In Wen Mei Lu, Pet Lodges Inc. submitted an application to the City’s Building Inspector in 2016, seeking approval of the proposed construction of a pet boarding facility.  The 6,000-square-foot kennel facility was planned for a 1.6 acre parcel of land that was split zoned Rural Residence and Tourist Related Business (TRB).  The smaller rear portion of the property, zoned Rural Residential, allows for animal kennels, but the TRB zone that comprises the larger portion of the property fronting on State Route 9, prohibits the use.

The application was denied by the City’s Building Department on the ground that the project required area variances for certain setback issues.  Pet Lodges Inc. then applied to the ZBA for area variance relief.  At the hearing, the restaurant owner’s attorney submitted letters and testimony claiming, among other things, that the kennel required a use variance, because it was a prohibited use in the TRB zone, and was fundamentally inconsistent with the permitted uses such as service establishments, eating and drinking establishments and bed and breakfasts.

The Appellate Division, in finding that the ZBA rationally determined a use variance was not required, noted that although kennels are prohibited in the TRB zone, under the City’s zoning ordinance, where a zoning district boundary line divides a lot or land, the district requirements on either side of the boundary may be construed, at the property owner’s option, as extending 100 feet into the remaining portions of the property.  Here, the applicant chose to extend the Rural Residential district where kennels are permitted into the TRB commercial zone where kennels are prohibited.

Finding that such an extension of a zoning boundary did not require a use variance, the Court went on to hold that the ZBA’s determination to grant the necessary area variances had a rational basis in the record.  The Court also determined that while a small portion of the facility’s parking area and driveway will lie within the TRB district, the ZBA rationally found that such accessory uses were not prohibited under the zoning ordinance.   The Court noted that ZBAs are “invested with the power to vary zoning regulations in specific cases in order to avoid unnecessary hardship or practical difficulties arising from a literal application of the zoning law.”

Given the potential complexities associated with split zoned properties, this decision provides some clarity as to what the courts and zoning boards are considering when faced with split zoned lots.

 

 

 

General Municipal Law §239-m requires that before taking action on a land use application, a municipal agency like a Zoning Board of Appeals or Planning Board must refer the application to a county or regional planning commission for its recommendation. This referral and receipt of comments and recommendations from the planning commission is no longer just a nicety. It is jurisdictional.

Any variance or site plan or other land use approval is null and void if the approving agency has not followed this referral procedure. e.g., Ernalex Constr. Realty Corp v. City of Glen Cove, 681 N.Y.S. 2d 296 [2d Dept.1998]; 24 Franklin Ave. R.E. Corp. v. Heaship, 30 N.Y.S.3d 695 [2d Dept. 2016].

Moreover, the statute of limitations does not even begin to run to challenge an agency action (the grant of a variance, for example) if the variance is jurisdictionally defective because the referral procedure was not followed. e.g., Hampshire Mgt. Co., No. 20, LLC v. Feiner, 860 N.Y.S.3d 714 [2d Dept. 2008].

Old news.

So, what happens if an agency grants a variance without following the referral procedure and then, perhaps realizing its mistake, grants an amended variance where it does make the proper referral to the planning commission?

In Fichera v. NYS Dept. of Environmental Conservation, 74 N.Y.S.3d 422 [4th Dept. 2018], the Fourth Department held that the original and the amended variances were both null and void. The applicant had received variances from the Town’s ZBA, and permits from the DEC needed to conduct mining. The ZBA and the applicant argued that the time to challenge the original variance had run and that the amended variance was perfectly fine because the referral process had been diligently followed.

The Appellate Division disagreed. First, the Court applied the “old news” rules above to find that the original variance was jurisdictionally defective because of the failure to follow the referral process. Then, they also held that the same jurisdictional defect tolled the statute of limitations so that the challenge to the original variance was timely. Therefore, the original variance was vacated as jurisdictionally defective.
What about the amended variance? Shouldn’t that be upheld because there was a proper referral and, therefore, no jurisdictional defect?

Not so fast, said the Court. The applicant’s problem was that the ZBA relied on the initial variance in granting the amended one: “Inasmuch as the determination granting an amended area variance was based on the initial, void determination, we further conclude that the ZBA’s approval of the amended variance is likewise null and void. . . .

One factor that appears to be important is that the planning commission had strongly recommended that the variance be denied. A zoning board can override the commission’s recommendation by a super-majority vote. Here, the ZBA had voted unanimously to override the commission’s recommendation to deny the amended variance. No good, said the Court: “[T]he subsequent vote cannot retroactively cure the jurisdictional defect in granting the original area variance upon which the ZBA relied in granting the amended area variance.”

The applicant’s and the ZBA’s problem, it appears, is that they took a short cut to rely on the original variance, at least in part, in deciding to approve the amended variance. In retrospect, they should have made a new determination. The Court agreed and remitted the matter back to the ZBA “for a new determination on petitioner’s application.”

Hindsight is always accurate, and the impetus to avoid re-hashing materials already reviewed is understandable. But the short cut here, especially in light of the opposition from the planning commission and organized concerned citizens, lead to a long road. A good lesson.

A few days ago, the Town Supervisor of the Town of Southampton and the Town Trustee President sent a letter to the State Comptroller and State Park Commissioner requesting an opinion as to whether Town Trustee property, known as Hayground Cove or the Rose Hill Drive Boat Ramp, a small waterfront area with a boat launch, is parkland.  If so, it would be regulated by New  York State’s strict interpretation of the public trust doctrine.

At issue is a private homeowner’s 15-year lease with the Trustees, which would  allow the neighboring waterfront estate exclusive use to portions of the Trustees property to construct a private driveway in exchange for maintaining the Town’s existing boat ramp.  Without state legislative approval, such exclusivity could be as thorny as a rose thicket and may run afoul of New York’s public trust doctrine.

The Public Trust Doctrine & Parkland Alienation

New York courts have long held that the “public trust” doctrine precludes the use of dedicated parkland for non-park uses.  See,  Matter of Avella v City of New York, 29 NY3d 425 [2017].  New York’s public trust doctrine is based on English common law that has evolved over centuries.  In sum and substance, the public trust doctrine provides that certain land should, by use or by the purpose of its conveyance, be available for the use and enjoyment of the public.  Only the State Legislature has the power to alienate parkland. See, New York State Office of Parks, Recreation and Historic Preservation Handbook on the Alienation and Conversion of Municipal Parkland

Under New York State’s public trust doctrine, land can become parkland either by a formal dedication through express provisions (i.e. restrictions in a deed or a legislative enactment), or by implied dedication manifested by acts such as continued use as a park. Id.  Implied dedication of parkland occurs by actions or declarations by a local government that are unmistakable in their purpose and character as to intend to dedicate land for use as parkland. Examples include a municipality publicly announcing its intention to purchase the land specifically for use as a park and long continued and accepted use of land as a park can also constitute dedication through implication. Id.

Parkland alienation occurs when a municipality wishes to convey, sell, or lease municipal parkland or discontinue its use as a park no matter what  the size.  In order to legally convey parkland to a third party, or to use parkland for another purpose, a municipality must receive prior authorization from the New York State Legislature and be approved by the Governor.

In alienation cases, leases are carefully examined to determine the extent to which exclusivity is granted and a public benefit is served.  See, Lake George Steamboat Co. v. Blais, 30 NY 2d 48 [1972] (exclusive lease of a park’s marina space to a private sightseeing company was found to be parkland alienation).

The Hayground Cove-Rose Hill Road Boat Ramp

According to the Town of Southampton’s website, the Rose Hill Boat Ramp is a public boat ramp for town residents. The surrounding Town-owned land appears to be operated as a park in connection with that boat launch, which use has gone on for decades.  Under the lease agreement with the Trustees, in return for taking on the maintenance of the public boat ramp, the homeowner was able to move a line of trees from the middle of his property to the middle of the Trustees’ property, expanding the private lot’s circular driveway.  The tree-moving work has already been completed.

Conclusion

While it is laudable that the Trustees are attempting to maintain a town boat launch at no cost to town residents, which arguably could be a plausible public purpose, is that sufficient in light of the long history of New York courts prohibiting parkland alienation for non-park uses absent specific authorizing legislation?   We await a determination of the State Comptroller and Park Commissioner to see if the homeowner’s lease with the Town is valid. Either way, that decision could have a profound impact on similar agreements.  Stay tuned.

 

 

 

 

In April 2006, the Town of Huntington adopted a local law (Local Law 14-2006) that added § 198-27(A)(22) to its Zoning Code. That local law allows apartments on the top floors of some mixed-used buildings in its C6 General Business District, where the ground floor is occupied by a permitted commercial use. While the code provides certain restrictions on these upstairs apartments, such as no upper floor can exceed the footprint of the ground floor and the mixed used building must meet all height, area and bulk requirements, these limitations are not enough for some residents. They contend that the zoning allows too many apartments to be piled on top of a commercial establishment, resulting in over-development, traffic, pollution, loss of open space and other adverse impacts.

At the May 1, 2018 Huntington Town Board meeting, a petition signed by almost 1000 residents was presented to the board, demanding that the board hold a public hearing to revoke or significantly limit the number of apartments. Some of the proponents of this change noted at the meeting that Huntington “was becoming Queens” as a result of the 2006 local law. Several of the speakers pointedly reminded the Supervisor of statements he made during his campaign, to preserve the suburban nature of the Town. This grass-roots effort to change the zoning code may be having an impact on the Town Board.

The Supervisor reportedly asked the town’s planning department to review the C6 zoning provision in an effort to strike a balance between encouraging business development while at the same time preserving the quaint nature of the town. Once the planning department completes its review and issues its recommendation, the Town Board will then decide whether to hold a public hearing to change the zoning code. Stay tuned.


It turns out, according to the Supreme Court, Orange County, that the standards for review of municipal contracts are noticeably less stringent for New York Village Boards than for Town Boards.  Village Boards may approve a contract in principal, allowing the Mayor some room for further negotiation and language changes.  Town Boards must review and approve the actual, final contract; and the Supervisor may not refine or sign any other contract.  That was the Court’s analysis in Guazzoni v. Village of Tuxedo Park, ____ N.Y.S.3d ____, 2018 N.Y. Slip Op. 28177, 2018 WL 2946114 (Sup. Ct., Orange Co. 6/12/2018).

 

The Trustees of the Village of Tuxedo Park passed a resolution that the Village enter into a consulting agreement with an outside Consultant.  (The Court’s opinion does not disclose the nature of the consulting.)  The Board’s resolution states that the contract was to be “substantially” in the form reviewed by the Trustees, “together with such changes as may be reviewed by counsel and approved by the Mayor” and one of the Trustees.  The Mayor then signed a contract under which the consultant was paid approximately $5,371 per month and an additional sum of $800 per month for costs or reasons not discussed in the opinion.

Plaintiffs were not happy with the contract – again, for unspecified reasons.  They brought an action claiming that the Mayor had not been authorized to enter into the contract as it was finally drafted and signed after review and modification by counsel (presumably the Village Attorney), the Mayor and the single Trustee specified by the Board.

The Court held that a Village Board did not have to approve the final contract.  The Court recognized that statutory restrictions on a municipality’s power to contract serve the purpose of protecting the public from “corrupt or ill-considered actions of municipal officials.”  However, it was sufficient that the Trustees had authorized the Mayor to sign a contract that was substantially like the terms the Trustees had reviewed.

The Court relied on NY Village Law §4-412(1)(a) which defines the general powers of Village Trustees as, broadly speaking, the “management of village property and finances.”  The Village Law does not specify the manner in which village contracts must be made, and there is “no express statutory provision requiring village boards to approve contracts in their entirety before their execution by the mayor.”

In contrast, NY Town Law §64 defines the powers and duties of Town Boards and states that a Town Board “may award contracts” to “be executed by the supervisor in the name of the town after approval by the town board.”  Therefore, says this opinion, a Town Board must approve the exact contract with all details before the Supervisor can sign it – but Village Boards may approve the substance of a deal with a municipal contractor; and the Mayor may sign any contract that does not change the substance approved by the Trustees.

It was not strictly necessary for the Court to construe Town Law §64 to decide the village case before it – although the analysis is certainly interesting.  The lack of any detail of how the final contract negotiated by the Mayor and one of the Trustees differed from the substance approved by the Trustees is also intriguing.  Without that information it is difficult to know why the plaintiffs were concerned enough to bring an action challenging the contract and, more importantly, how this recent case may affect future municipal contracts.

Since the Court ultimately did not dismiss the complaint because the record was insufficient, the case will continue; and there might be further lessons to learn.  The lesson for now is that it is crucial to review the procedure by which contracts are adopted if your client is the municipality or a citizen challenging the municipality’s contracts.

 

For many decades, Long Islanders have been hearing about proposals to span over or under Long Island Sound. The most recent pronouncement for a cross-sound tunnel or bridge came from Governor Cuomo in his 2016 state-of-state address. This was followed by a report released by the New York State Department of Transportation (NYSDOT) in December 2017 (LI Sound Report) which examined the feasibility and regional benefits of a Long Island Sound crossing. More on this proposal later in this post. But first, a review of prior proposals.

Prior Proposals

According to the 2017 LI Sound Report, the first cross-sound proposal originated in the 1930s. That proposal involved an eighteen-mile bridge going from Orient Point to either Groton, CT or Watch Hill, RI. It faded from consideration upon the death of the senator championing the bridge and the start of World War II.

In the 1950s, another proposal involved two bridges, one from Oyster Bay to Rye/Port Chester and the other from Orient Point to Watch Hill, RI. Governor Harriman put the kibosh on this proposal due to its cost and low traffic predictions. (Clearly, not the most accurate traffic study ever done!)

During the 1960s, several proposals were floated, including one that would have extended the Long Island Expressway 30 miles from Riverhead to Orient Point and constructed two bridges from Orient Point going to New London, CT and Naptree Point, RI. Neither bridge was built and the LIE still terminates in Riverhead. In the mid-1960s, uber-road builder, Robert Moses, proposed constructing a 6.1 mile bridge from Oyster Bay to Port Chester, with a price tag of about $100 million. Although initially supported by Governor Rockefeller, the proposal ran into difficulties with then-new environmental impact study requirements. In 1968, a proposal to build two bridges, one between Oyster Bay and Rye and the other between Port Jefferson and Bridgeport, was considered. While the bridges were believed to be economically feasible, and would reduce the enormous increase in east-west traffic, this proposal also did not move forward.

The 1972 Long Island Sound Crossing project, which included realignments of the Long Island Expressway in Syosset and Route 95 in Rye, ran into local opposition and Governor Rockefeller stepped in and killed the project. In 1979, another proposal considered five different locations for a cross-sound bridge. The expected cost was $1.4 billion. The proposal ran out of gas when one study determined that a ferry would be better than a bridge to cross the Sound.

In 2008, the Polimeni/Long Island Cross Sound Link Tunnel proposal called for the construction of a 16-mile, three-tube, six-lane tunnel. Estimated to cost about $10-$13 billion, it ultimately failed due to waning state support and the economic recession.

The Latest Proposal

This leads us to the most recent proposal. While the 2017 LI Sound Report  looked at several options, it ended up recommending that five possible alignments should be further evaluated. These include two options for a western alignment, from Oyster Bay to Rye/Port Chester, for a bridge only or bridge/tunnel combination, and three options for a central alignment, from Kings Park to Bridgeport or Devon, for bridge only and two different bridge and tunnel connections. The 2017 LI Sound Report also looked at a third alignment, called the eastern alignment, from Wading River to New Haven or Branford, but was rejected as not meeting the project’s goals. These goals include decreasing travel time, decreasing congestion, improving air quality, expanding labor markets, improving evacuation off of Long Island and improving freight movement.

The 2017 LI Sound Report looked at engineering considerations of what would be one of the largest projects of its type in the world. Essentially – can this project be built? The study also evaluated environmental considerations, including impacts to wetland, waterbodies, groundwater, ecology, natural resources, critical environmental areas, farmland, air quality climate change, noise, asbestos and hazardous wastes. The study also looked at capital and financial considerations, including the estimated cost to build the project ($55 billion), the demand for the crossing and possible tolls that would be charged for its use.

The release of the 2017 LI Sound Report in December 2017 was followed up in January 2018 by a Request for Expressions of Interest issued by the NYSDOT (RFEI). The RFEI requested input for all aspects of the proposal, with the ultimate goal of issuing a Request for Proposal to build the project in the future. It is reported that six major developers responded to the RFEI.

The Reaction To The Proposal

Business groups such as the Long Island Association and the Long Island Builders Institute noted that the project deserved serious consideration and could help alleviate Long Island’s massive traffic issues. Not unexpectedly, local politicians and residents from Bayville, Syosset, Ashaorken, Brookville, Lattingtown, Sea Cliff, Lloyd Harbor, Oyster Bay, Upper Brookville and other local communities voiced strenuous objections to this project. Among other issues, the residents and politicians claim that the tunnel’s ventilation/exhaust and emergency access systems would adversely impact air quality, would increase traffic congestion in their neighborhoods, would contaminate the groundwater and cause other environmental catastrophes. Community meetings are being held across Long Island by the opponents of the project. The next one is scheduled for June 14th in Syosset.

Next Steps

While the project will undergo multiple years of further study before being built, and is proposed by a Governor who has been instrumental in replacing aging infrastructure with new state-of-the-art structures that others said would never be built (e.g., the Tappen Zee Bridge), it will be interesting to see if the Long Island Sound Crossing Project gets built or becomes another proposal that is DOA on the drawing board.

Recently Farrell Fritz, P.C. represented a family held limited liability company in connection with an application to a East End zoning board of appeals to maintain an eight (8) foot fence and six (6) foot driveway gates around its property in Sagaponack.   See, 79 Parsonage LLC v. Zoning Board of Appeals of the Incorporated Village of Sagaponack.  Both the fence and a portion of the applicant’s gates violated the Village of Sagaponack’s six (6) foot height limitation.

On behalf of the applicant, Farrell Fritz argued that a fence was necessary to exclude a family of deer that had taken up residence on the property.  Exclusion of the deer was necessary as one member of the household had suffered through two bouts of Lyme’s Disease. In addition, the fence was constructed among mature vegetation and was not visible from the street.

Despite those and additional arguments offered at the hearing, the Sagaponack Zoning Board denied the application.

On behalf of the property owner, Farrell Fritz commenced an Article 78 proceeding in the New York State Supreme Court, Suffolk County, appealing the Zoning Board’s Decision.

On December 15, 2017, Justice Gerard W. Asher, J.S.C. overturned the Zoning Board’s denial and directed the Board to issue the requested variances finding that the applicant overcame the presumption afforded to Zoning Boards in deciding zoning cases. Through the Article 78, Farrell Fritz demonstrated that no evidence existed to support the Zoning Board’s decision; and its findings were conclusory, and therefore irrational and arbitrary and capricious. Judge Asher agreed with the application that the fence was hidden, and a grant would benefit the applicant because one of the two members already suffered from Lyme’s Disease. After making the findings, Judge Asher vacated and annulled the ZBA determination.

What Judge Asher makes clear in his Decision, and should be considered by all practitioners, is that zoning boards must balance all of the relevant considerations in a rational way.

In April of 2016 we published the blog entitled “Mining in the Hamptons: Appellate Division Affirms Town of Southampton Zoning Board of Appeals Limitations on Pre-existing Nonconforming Uses Associated with Hamptons Mining Operation.” Despite the Appellate Division’s decision regarding certain pre-existing nonconforming uses occurring on the site, Sand Land Corporation’s (“Sandland”) pre-existing mining use of the property was never at issue, until now.

In January 2018, the New York State Department of Environmental Conservation (“DEC”) issued a determination entitled “Ruling of the Chief Administrative Law Judge on Threshold Procedural Issue, January 26, 2018” essentially halting the DEC’s review of Sandland’s mining permit application until further information was submitted by the Town of Southampton. Sandland, was authorized pursuant to a Mined Land Reclamation Law (MLRL) permit issued by the DEC to mine sand and gravel from 31.5 acres of the 50 acre site to a depth of 160 feet above mean sea level, which is 60 feet below the surface elevation at 220 feet. In January of 2014, Sandland submitted an application to the DEC to expand its current permit to mine 4.9 additional acres and excavate the floor of the mine to 120 feet above mean sea level- lowering the mine floor by 40 feet. The DEC notified the applicant that a permit modification to expand the mine “beyond its previously approved life of mine boundaries” was considered a “new application”, classified as a “major project” and required a statement that mining was not prohibited at the site.

NYS Environmental Conservation Law (“ECL”) §23-2703, Declaration of Public Policy, Subsection 3 states, “No agency of this state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title, within counties with a population of one million or more which draws its primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Suffolk County satisfies this criteria having a population of one million or more and drawing its primary source of drinking water from a sole source aquifer. Opponents of Sandlands’ application argued that because mining is prohibited in the zoning district where the property is located, ECL §23-2703 (3) applies and the DEC is prohibited from processing the application.

ECL §23-2711(3) requires that the DEC notify the Town’s “Chief Administrative Officer” for properties not previously permitted pursuant to that title and seek input regarding whether mining is permitted on site.[1] The Town responded with a letter noting the Certificate of Occupancy authorizing mining on site but noted that if the DEC was characterizing this as a new mine, that new mines are prohibited in all zoning districts.[2] The Town further noted the location of the property in the Aquifer Protection Overlay District and requested that the reclamation of the property be expedited to allow the property to be used for conforming residential purposes. However, the Town did acknowledge that “certain nonconforming uses, if they are established to pre-exist zoning, are allowed to continue and even expand under certain circumstances pursuant to Town Code §330-167B”.

Additionally, the Town Code provides for the continuance of nonconforming uses pursuant to §330-115 which states, “Any lawful use occupying any building, structure, lot or land at the time of the effective date of this chapter or any amendment thereto which does not comply after the effective date of this chapter or any amendment thereto with the use regulations of the district in which it is situated may be continued in the building or structure or upon the lot or land so occupied, except as provided in § 330-119.”[3]

The DEC held a hearing where the applicant argued that the application only sought renewal of an existing permit for a lawful preexisting nonconforming use. Ultimately, however the DEC Administrative Law Judge held that ECL § 23-2703(3) prohibits the DEC from processing mining permits for mines located in towns such as the Town of Southampton, Suffolk County, where the county, with a population of over one million people, draws its primary drinking water for a majority of its residents from a designated sole source aquifer, and the town has a local law prohibiting mining in the town. Additionally, the Administrative Law Judge found that Sandland had not established that the proposed mine expansion was authorized under the Town’s local zoning laws. The reviewing Judge adjourned the matter pending submission of proof adequate to establish that applicant’s proposed mine expansion is authorized under the Town’s local law.

As determined by the New York State Court of Appeals, a prior nonconforming use for mining is unique in that it is not limited solely to the land that was actually excavated before the enactment of a restrictive zoning law (in this case, March 27, 1983) but extends well beyond.[4] The well-known Court of Appeals case, Syracuse Aggregate, established that pre-existing mining rights extend to the boundaries of the property regardless of whether that specific area was mined prior to the change in the zoning law. In examining the nature of mining as a nonconforming use the Court stated:

“By its very nature, quarrying involves a unique use of land. As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it, quarrying contemplates the excavation and sale of the corpus of the land itself as a resource. Depending on customer needs, the land will be gradually excavated in order to supply the various grades of sand and gravel demanded. Thus as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.” [5]

In furtherance of this premise, the Court of Appeals in Buffalo Crushed Stone extended that holding to properties purchased in contemplation of mining that are separate and apart from the original mined parcel.[6] The Court stated,

“Consequently, a prior nonconforming use for quarrying cannot be limited solely to the land that was actually excavated before the zoning law, because-in this unique type of industry- landowners commonly leave portions of their land as mineral reserves to be excavated at a future time.[7]   Mine owners commonly leave portions of their land as mineral reserves to be excavated at a future time.”[8]

The question remains, then, how this administrative court essentially halted the continuation of this “unique” mining operation that pre-exists zoning via the DEC permitting process without applying or even considering this well-established line of Court of Appeals cases.  Indeed, the reviewing Administrative Law Judge did cite the Syracuse Aggregate case but only for the following premise: “A town’s authority includes not only the power to prohibit the development of new mines ( see id. at 684), but to impose reasonable restrictions limiting the expansion of and eventually extinguishing prior nonconforming mining uses within the town (See Matter of Sand Land Corp. , 137 AD3d at 1291-1292; Matter of Syracuse Aggregate Corp. v Weise , 51 NY2d 278, 287 [1980] Matter of 550 Halstead Corp. v Zoning Bd. of Appeals of Town/Vil. of Harrison , 1 NY3d 561, 562 [2003] [Because nonconforming uses are viewed as detrimental to zoning schemes, public policy favors their reasonable restriction and eventual elimination.]).”

However, the Judge failed to take notice of the Court of Appeals holding in Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 642 N.Y.S.2d 164, 664 N.E.2d 1226 (1996), upholding a zoning law banning mining except for preexisting operations. “Towns may not directly regulate mining, but they retain the power to zone — even to zone out mining totally, as long as non-conforming uses are protected, as the Constitution mandates, to prevent a de facto taking.” See McKinney’s Practice Commentaries to NYS Environmental Conservation Law 23-2703 , Philip Weinberg (emphasis added).

Procedurally, Sandland’s mine permit expires in November of 2018. The matter was appealed administratively in a motion to reargue, a second hearing took place and we look forward to the Administrative Law Judge’s ruling.

 

[1] ECL §23-2711(3) further states,(a) The chief administrative officer may make a determination, and notify the department and applicant, in regard to: (i) appropriate setbacks from property boundaries or public thoroughfare rights-of-way, (ii) manmade or natural barriers designed to restrict access if needed, and, if affirmative, the type, length, height and location thereof, (iii) the control of dust, (iv) hours of operation, and (v) whether mining is prohibited at that location. Any determination made by a local government hereunder shall be accompanied by supporting documentation justifying the particular determinations on an individual basis.

[2] Mining effectively became prohibited in the Town of Southampton on March 27, 1981. See Huntington Ready Mix-Concrete Inc. v. Town of Southampton et al., 104 A.D.2d 499 (1984).

[3] Town Code § 330-119, Compulsory termination of nonconforming uses, bars, taverns and nightclubs, addresses the amortization of pre-existing nonconforming nightclubs.

[4] Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 434 N.Y.S.2d 150 (1980); Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 N.Y.3d 88, 885 N.Y.S.2d 913 (2009)(stating “quarrying contemplates a gradual unearthing of the minerals in the land, as so excavation of portions of the land may be sufficient to manifest an intention to conduct quarrying on the property as a whole.”)

[5] Id. at 285, 434 N.Y.S.2d 150 (citations omitted).

[6] Buffalo Crushed Stone, Inc., 13 N.Y.3d 88, 885 N.Y.S.2d 913 (2009)(confirming the mining company had the vested pre-existing right to mine a separate parcel, “subparcel 5” which was not mined by its predecessors and separated by a road from the larger mined area.)

[7] Id. at 401.

 

[8] Id. at 396 stating, (“we hold that the long and exclusive quarrying operation of BCS and its predecessors and their preparations to use areas left as aggregate mineral reserves, consistent with the nature of quarrying, established a right of prior nonconforming usage on the disputed subparcels”).

Last month, the Appellate Division, Second Department, issued four decisions[1] in a series of hybrid proceedings challenging local laws in the Town of Riverhead (“Riverhead”). Plaintiff/Petitioner Calverton Manor, LLC (“Calverton Manor”), in connection with a site plan application, sought to annul several resolutions adopted by Defendant/Respondent Riverhead Town Board (“Town Board”). These resolutions: (1) established a new comprehensive plan; (2) implemented a new agricultural protection zoning district (“Agricultural District”); (3) implemented a new rural corridor district (“Rural District”); and (4) enacted a new transfer of development rights law (“TDR Law”). Each of the challenges was based upon the Town Board’s failure to comply with N.Y. General Municipal Law Section 239-m (“Section 239-m”), among other things. In addition, Calverton Manor argued that the “special facts exception” required Riverhead to apply the preceding zoning district laws to its application, rather than the new Agricultural District and Rural District laws.

In these cases, the Court held that some circumstances allow revisions to be made to proposed laws or actions referred to the county planning agency pursuant to Section 239-m even after the referral is made. As the Court analyzed Calverton Manor’s Section 239-m challenges to the various Town Board resolutions, its holdings illustrate the distinction between valid post-referral modifications and invalid modifications which violate Section 239-m and render the entire act void. Additionally, the Court analyzed the special facts exception in light of Riverhead’s treatment of Calverton Manor’s application.

Calverton Manor’s Site Plan Application versus a New Comprehensive Plan

Calverton Manor owns an undeveloped parcel of land (“Property”) in Riverhead and submitted a site plan application in 2001 to construct numerous commercial and residential buildings thereon (“Application”). For approximately two years, Calverton Manor worked with Riverhead on its Application to satisfy the applicable zoning laws in effect at the time. Riverhead, however, had been developing a new comprehensive plan since 1997. The new comprehensive plan sought to protect open space and farmland, while concentrating development into certain specified areas. Riverhead’s new comprehensive plan also proposed eliminating certain permitted uses on the Property that were crucial to the Application.

Calverton Manor submitted the last revised Application in September 2003. The Town Board adopted the new comprehensive plan on November 3, 2003. The new comprehensive plan derailed the Application and development of the Property. Calverton Manor brought its challenges in Suffolk County Supreme Court. Calverton Manor was largely unsuccessful and appealed; the Town Board cross-appealed concerning the special facts exemption.

Amendments Subsequent to a Section 239-m Referral: Embraced in the Original

With respect to Calverton Manor’s Section 239-m challenge to the Town Board’s resolutions enacting the comprehensive plan, the Agricultural District and the Rural District, the trial court denied the petition, dismissed the proceeding and declared theses local laws legal and valid.[2] Section 239-m, in many instances, requires a municipality to submit to the county planning agency a “full statement” of the proposed action. In pertinent part, the trial court found that the Town Board made the appropriate Section 239-m referrals. Calverton Manor appealed and the Second Department affirmed. The Court held that despite changes made to the comprehensive plan, Agricultural District and Rural District after the Town Board referred these local laws to the Suffolk County Planning Commission (“Commission”), the revisions were “embraced within the original referral” such that the Town Board did not fail to refer a full statement of its proposed action.

Calverton Manor also presented a Section 239-m challenge to Riverhead’s new TDR Law. Transfer development rights allow landowners whose development rights have been adversely affected or limited in one place to transfer these rights to another place and build in excess of certain limitations in that other, buildable place. The parcel from which rights are transferred is the “sending parcel” and the parcel to which rights are transferred is the “receiving parcel.” Riverhead’s new TDR Law designated the Property as a “sending parcel” so that development rights could only be transferred away from it, as opposed to towards it.

With respect to this challenge, the trial court also denied Calverton Manor’s Section 239-m challenge to the TDR Law based upon the same rationale. The Second Department, however, reversed the trial court, granted the motion for summary judgment and declared the TDR Law void for failure to comply with Section 239-m. The Town Board’s submission of the TDR Law to the Commission was effectively rejected because it was missing the complete text of the law. The Commission, upon receipt of the proposed law, advised the Town Board by letter that it would not review the TDR Law until it received a complete revised text of the amendment. And, nothing in the record contradicted the Commission’s position that it did not receive a complete text of the law. Therefore, the Court found that the Town Board failed to refer a “full statement” of the proposed TDR Law to the Commission prior to enacting the same in violation of Section 239-m.

The Town Board sought the same “embraced within the original” protection the Court applied to the other local laws. Specifically, the Town Board argued its referral of prior drafts of the TDR Law sufficed Section 239-m and obviated the need for the subsequent referral. The appeals court disagreed. A new referral is not required only if “the particulars of the [changes] were embraced within the original referral.” Unlike the changes made to the comprehensive plan, Agricultural District and Rural District, subsequent to their referrals, the amendments to the TDR Law were not embraced within the referred version.

The TDR Law ultimately passed by the Town Board, among other things, mapped the sending and receiving districts and specified the degree to which density limitations could be exceeded. The prior versions of the TDR Law reserved these details for future consideration. Highlighting the significance of the changes made to the TDR Law post-referral, the Town Board’s own resolution declared that the final TDR Law contained “significant modifications” from the prior versions. In addition, the Town Board even prepared a supplemental generic environmental impact statement over the course of several months to evaluate the changes in the final TDR Law. Accordingly, the Court held that the Town Board failed to comply with Section 239-m, the adoption of the resolution enacting the TDR Law was of no effect and the TDR Law is void and unenforceable.

Special Facts Exception Permits “Grandfathering” Site Plan Applications

In addition to its Section 239-m, Calverton Manor argued “special facts” required that the zoning district laws preceding the Agricultural District and Rural District apply to its Application. Ordinarily, courts apply the current zoning laws in effect when they render decisions. Under the special facts exception, however, courts may apply the law in effect at the time the application was made. This exception applies where the landowner “establishes entitlement as a matter of right to the underlying land use application [and] extensive delay indicative of bad faith….unjustifiable actions by municipal officials…or abuse of administrative procedures.”

The Town Board sought to dismiss this claim, but the trial court held triable issues of fact existed sufficient to permit the claim to proceed. The Town Board cross-appealed and the Second Department denied its appeal.[3] The Court found that triable issues of fact exist as to whether special facts warranted the application of the prior zoning laws to Calverton Manor’s Application.

The record contained inconsistencies as to whether Calverton Manor’s last revised Application was “complete” in September 2003. On the one hand, evidence in the record showed that Calverton Manor needed to make further revisions before the Application could be deemed completed under Riverhead’s rules. In this scenario, Calverton Manor is not entitled to the exception. On the other hand, evidence also showed that the Town Board determined the Application was “completed” upon submission in September 2003. This latter circumstance indicates the Town Board may have delayed processing the Application in bad faith until the new laws went into effect. Because triable issues of fact exist, summary judgment on this claim was inappropriate.

—ENDNOTES—

[1] Calverton Manor, LLC v. Town of Riverhead, 160 AD3d 829 (2d Dept 2018); Calverton Manor, LLC v. Town of Riverhead, 160 AD3d 833 (2d Dept 2018); Calverton Manor, LLC v. Town of Riverhead, 160 AD3d 838 (2d Dept 2018); Calverton Manor, LLC v. Town of Riverhead, 160 AD3d 842 (2d Dept 2018).

[2] Although these are hybrid proceedings, for the purposes of simplicity, the petition/complaint will be referred to as the petition and the proceeding/action will be referred to as the proceeding.

[3] The Town Board cross-appealed “from so much of the order as did not search the record and award them summary judgment and, in effect, make a declaration in their favor” on Calverton Manor’s special facts exception claim. The Second Department “dismissed” the cross appeal based upon the premise that the Town Board was not entitled to make such an appeal because it was technically not aggrieved. The Court noted that a party is not aggrieved by an order which does not grant relief that the party did not request. Here, apparently, the Town Board did not ask the trial court to award summary judgment on the special exceptions claim. Therefore, it cannot be aggrieved by this aspect of the order and is not entitled to appeal it. Despite having “dismissed” the cross-appeal, the Second Department heard, analyzed and denied the Town Board’s arguments seeking summary judgment on the special facts exception.

It is not uncommon for municipal planning departments to require applicants who are seeking land use approvals involving multiple contiguous parcels to consolidate or merge the properties to form one single larger parcel. Consolidation or merger typically results in a new tax map number, a new single tax bill for the consolidated or merged lots, assurances to the municipality that the otherwise single unconsolidated or non-merged lots will not be individually sold off post land use approvals and that the proposed project which is subject to the land use approvals will be assessed for real property tax purposes as one single improved unit (versus partially improved and partially vacant land).

Consolidation or merger of single parcels into one larger parcel provides for certainty when it comes to ownership of the lands subject to the approvals and provides the municipal assessing unit with certainty as to the use of the lands while imposing a single tax class and assessed value to the overall project.  Consolidation or merger is most often required prior to issuance of a building permit or Certificate of Occupancy.  Consolidation can be set forth as a covenant or condition in a written and signed Declaration of Covenants and Restrictions, which is recorded against the property in the applicable County Clerk’s or County Registers Office.  Similar to any other covenant or restriction, failure to comply with the covenant or restriction to consolidate can result in revocation of the relevant land use approvals.

In a recent Second Department case involving a real property tax assessment dispute, failure by the property owner to consolidate or merge six individual parcels that form the boundaries of a shopping center gave rise to unequal tax assessments among the six parcels, resulting in the exact problem that municipalities try to avoid by requiring consolidation or merger.

In re Blauvelt Mini-Mall, Inc v. Town of Orangetown, as a condition of site plan approval granted in 1992, the Town required that six individually owned parcels be merged into one single parcel forming the boundaries of a proposed shopping center.  Despite the condition, no formal steps were ever taken to effectuate the merger.   The facts of the case do not indicate whether the merger requirement was reduced to a recorded Declaration of Covenants and Restriction with revocation language.

Over the years, although a formal merger was never accomplished, the Town assessed the shopping center as one real property taxable unit by undervaluing five of the parcels while overvaluing the sixth parcel.  This valuation strategy lead to the unequal tax assessments that consolidation or merger seeks to avoid.   What is interesting about this case from a land use perspective is the fact that despite the 1992 Town directive to consolidate or merge the lots, the Appellate Division reversed the trial court holding that directed the merger by stating that  “[n]one of the parties sought merger of the parcels or similar relief, merger of all the parcels at issue into one tax lot is not supported by the record, and merger of all the parcels could be potentially prejudicial to the petitioner.”

Hence, despite all outward appearances by the property owner to use the unconsolidated parcels as one consolidated improved shopping center parcel, failure to take the necessary steps to consolidate, such as transferring all six parcels into one deed, providing one overall property description or metes and bounds instead of six individual metes and bounds, and modifying the official tax maps to reflect one single parcel, the petitioner in this case could potentially benefit from the unequal tax assessments to the detriment of the municipality.  Likewise, even though the Town conditioned site plan approval on consolidation or merger of the lots, failure by the municipality to insure that consolidation actually occurred seems to have resulted in a waiver or estoppel against the municipality, which is not typically applicable to municipalities.

Author note: Although the facts of this case do not indicate the basis for under valuation of five parcels and over valuation of the sixth parcel, it would likely be reasonable that the five undervalued parcels are perhaps being assessed as vacant land containing only parking areas, or open space, while the sixth parcel houses the actual shopping center structure.  If this is the case, petitioner could easily argue that parcels one to five should receive a lower vacant land assessment, while only parcel six should receive a full commercial improved real property assessment.  Allowing this fact pattern to exist provides for uncertainty in tax assessments.